Labor & Employment Law Daily Psychiatric hospital’s ‘half-hearted’ implementation of safety measures violated OSHA General Duty Clause
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Thursday, March 5, 2020

Psychiatric hospital’s ‘half-hearted’ implementation of safety measures violated OSHA General Duty Clause

By Ronald Miller, J.D.

The employer’s measure of “overall patient aggression rate” did not answer the question whether the Secretary’s measures would appropriately safeguard employees by materially reducing the hazard of patient-on-staff violence.

The operator of a psychiatric hospital for potentially dangerous patients violated OSHA’s General Duty Clause by not adequately protecting its employees from the “recognized hazard” of patient aggression toward staff, ruled the D.C. Circuit. An administrative law judge found that the employer’s principal shortcoming was not its rate of patient-on-staff violence, but its failure to fully “implement the policies that it had on paper” to prevent such violence. The appeals court found substantial evidence supported the ALJ’s conclusion that the employer’s incomplete and inconsistently implemented safety protocols “were inadequate to materially reduce the hazard” posed by patient-on-staff violence (BHC Northwest Psychiatric Hospital, LLC dba Brooke Glen Behavioral Hospital v. Secretary of Labor, March 3, 2020, Pillard, C.).

Recognized hazard. The Occupational Safety and Health Act’s General Duty Clause requires every employer to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious harm to [its] employees,” 29 U.S.C. §654(a)(1). The employer here operates an in-patient facility to treat patients who, due to serious psychiatric and behavioral issues, pose a danger to themselves or others. In this case, the Secretary cited the hospital for violating the General Duty Clause by inadequately protecting its employees from the recognized hazard of patient aggression toward staff.

The hospital petitioned the appeals court for review of an administrative decision affirming the citation, contending that it was not supported by substantial evidence and that the agency failed to provide adequate notice of the workplace safety measures the General Duty Clause requires.

Expert testimony. In reviewing the citation, an administrative law judge heard testimony from the Secretary’s expert and the employer’s expert, who addressed the effectiveness of various measures for protecting employees from patient aggression. Although the ALJ qualified both experts, he placed less weight on the employer’s expert testimony because her examination of the hospital’s workplace violence was limited in time and scope and, in some respects, unsupported by the evidence.

The ALJ concluded that the employer failed to update its workplace violence program or implement various written safety policies. For example, staff training was inadequately implemented and the facility’s Code 100 system—used to summon help in psychiatric emergencies—relied on phones inadequately distributed in the facility and the staff lacked walkie-talkies or they frequently did not work. He also found that debriefings of staff involved in incidents did not consistently occur, or their scope was so limited that they did not meaningfully contribute to workplace safety.

Reliability of information. The employer adduced evidence showing that its average patient aggression rate in 2016 was 4.41 incidents over 1,000 patient days, below the average across all of its facilities. However, the ALJ noted several flaws in its incident reporting process that impaired the reliability of the information. Employees were not required to report incidents that did not result in an injury requiring first aid, or to report incidents where a patient injured them. The ALJ agreed with the Secretary’s principal recommendation that the employer implement a comprehensive workplace violence prevention and response program that would effectively address the gaps in its present system.

The ALJ affirmed the cited General Duty Clause violation. Thereafter, the Occupational Safety and Health Review Commission (OSHRC) denied review, and the employer petitioned the D.C. Circuit.

Substantial evidence. On review, the employer asserted that the ALJ’s affirmance of the General Duty Clause violation was not supported by substantial evidence and that it lacked adequate notice of the additional workplace safety measures the hospital needed to implement to avoid liability. Applying substantial evidence review, the question posed to the appeals court was whether the record evidence supported the ALJ’s conclusion that the employer violated the General Duty Clause.

Although the employer pointed to evidence that generally supported its “version of events,” that evidence did not undermine the ALJ’s conclusion. Proving “a violation of the General Duty Clause” requires the Secretary to establish that: (1) an activity or condition in the employer’s workplace presented a hazard to an employee; (2) either the employer or the industry recognized the condition or activity as a hazard; (3) the hazard was likely to or actually caused death or serious physical harm, and (4) a feasible means to eliminate or materially reduce the hazard existed.

Utility of measures. In this case, the focus of the employer’s petition was solely on the fourth element. To prevail on that final element, the Secretary had to “specify the particular steps a cited employer should have taken to avoid citation” and “demonstrate the feasibility and likely utility of those measures.” Further, where, as here, “an employer has existing safety procedures, the burden is on the Secretary to show that those procedures are inadequate,” as measured against the precautions “a reasonable prudent employer familiar with the circumstances of the industry” would take.

The employer contested the “likely utility” of the measures specified by the Secretary, challenging the ALJ’s conclusion that the recommended measures would materially reduce the hazard of patient violence beyond what the employer’s existing safety program already achieved. In particular, the employer asserted that the ALJ should have credited its industry expert over the Secretary’s expert. However, the appeals court determined that it must “accept the ALJ’s credibility determinations unless they are patently unsupportable.” Under that deferential standard, the employer’s challenge failed. The employer identified nothing to contradict the ALJ’s conclusion that the information the employer’s expert cited was adequately borne out by the evidence.

Reporting process. Next, the employer argued that the Secretary “provided no evidence of how” the recommended safety measures would further reduce the already low rate of patient aggression at its facility. However, the appeals court noted that the flaws the ALJ identified in the employer’s reporting process diminished the significance of its recorded rate of patient aggression. The employer’s measure of “overall patient aggression rate” did not answer the question whether the Secretary’s measures would appropriately safeguard employees by materially reducing the hazard of patient-on-staff violence.

In view of the employer’s multiple shortcomings in its overall process for preventing, tracking, and addressing patient-on-staff violence, the Secretary specified a thorough self-evaluation for the employer to determine what action or combination of actions would “eliminate or materially reduce the hazard.” The Secretary need not quantify the extent to which that program “would have materially reduced the likelihood” of patient-to-staff violence.

In sum, substantial evidence supported the ALJ’s conclusion that the employer’s incomplete and inconsistently implemented safety protocols “were inadequate to materially reduce the hazard” posed by patient-on-staff violence. Accordingly, the appeals court dismissed the employer’s petition to review the ALJ’s decision affirming the General Duty Clause citation.

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